ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 April 2019 DOCKET NUMBER: AR20180013825 APPLICANT REQUESTS: The applicant requests his general under honorable conditions discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he was asked if he wanted to leave three months early and he said sure that would be great. He did not realize that his discharge would be characterized as under general under honorable conditions. 3. On 16 July 1980, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of four years. 4. A review of his records shows he accepted nonjudicial punishment (NJP) on: * 3 August 1983 for wrongfully possessing marijuana at a place located outside the territorial limits of the U.S (i.e. Germany) * 1 September 1983 for willfully disobeying his superior noncommissioned officer (NCO), which the applicant appealed and the appeal was denied; vacated on 31 October 1983 for disrespect to his superior NCO and willfully disobeying his superior NCO 5. His record contains two statements from Sergeant (SGT) __ __ regarding applicants conduct and performance, dated June 1983 and July 1983. The applicant responded to SGT __ __ statements, dated June 1983, on the same document. He stated “I only give respect when I feel respect is due!” 6. He received two counseling forms regarding his performance and conduct for reasons to include but not limited to illegal drug use and poor performance as a Soldier. 7. Memorandum from Wildflecken, Germany Military Community, Community Counseling Center (CCC), Clinical Director, dated 9 November 1983, stated: a. The applicant was initially referred to the CCC on 14 September 1983 for possession of cannabis and the applicant was enrolled in Track II on 11 October 1983. He attended four group sessions. The applicant stated that he had received two Article 15's since enrollment in the program for disrespect to an NCO one for disobeying a lawful order. b. The director stated the applicant appeared to be manipulating for a Chapter 9 discharge, under Army Regulation (AR) 635-200, separation for alcohol or other drug abuse, in lieu of possible confinement. The applicant had no motivation for rehabilitation at this time. He concurred with the commander declaring the applicant a rehabilitative failure and recommended that the applicant be considered for elimination under Chapter 9. 8. On 16 January 1984, the immediate commander notified the applicant that he was initiating a bar to reenlistment against the applicant. On 10 February 1984, the bar to reenlistment was approved. On 11 April 1984, the bar to reenlistment was reviewed and the commander decided it would remain in effect. 9. On 22 February 1984, the applicant’s immediate commander notified him that he was initiating separation action against him under the provisions of AR 635-200 (Personnel Separations – Enlisted Separations), chapter 13, paragraph 13-2, unsatisfactory performance for drug abuse, and advised him of his available rights. The applicant was advised if approved, he may receive an honorable or general discharge. 10. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for drug abuse. He indicated that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He elected to submit statements on his own behalf. He stated: a. About six months ago he had trouble dealing with the people that he worked with, mainly three people, the squad leader, platoon sergeant, and his platoon leader. On that day he could not tell what the problem was but it drove him to the point where he wanted out of the military. So he tried to get out and it was the same answer everywhere he turned "You must be in trouble or get in trouble to get out." Then on 4 July 1983, he got into trouble. He had a pipe that was not his, but it had residue in it, or marijuana. He was busted down to private first class (PFC) and received other fines and punishments. Since then he had been treated like a common criminal or the lowest low life that there was. Which in turn made him want to get out even more. So when he went to CCC, he told his counselor that he would not cooperate and to fail him so he could give the counselor a good excuse to get him out. He made a lot of trouble in his platoon and received two more Article 15’s, each time asking them to be chapter him out. b. He had only four months to go before his expiration term of service (ETS) and he found himself being chaptered out. When he wanted to get out he thought he would be able to do it quickly and easily, but he found that it was long, hard, and unrewarding. Now he am faced with charges saying that he was a drug abuser, which was clear in his mind and in his records that he was not. He did not do drugs on any basis. His only mistake with drugs was when he had a pipe that did not belong to him. He realized that mistake and he knows that it will never happen again. c. He has always been a man with a good clean record and to get out of the military, especially at this point, when he only had four months to go, would dampen his records for the rest of his life It would follow him for the rest of his life that he was a drug abuser. d. It was clear to see the he was in a situation where he must think about his future, think about his present and examine the past. He had done some foolish things and he wanted it to be understood that he would not do it again. He had not been in trouble since December and since then he squared his appearance away. H adjusted to his squad leader, platoon sergeant, and platoon leader. e. His attitude to do wrong on any purpose had changed because he knew now that he could make it. When they get to Graf, he knew he could be beneficial to the company because he was one of the few that was still in the 94th Engineer Battalion, Germany, with good experience being down range. He could teach a lot of things to the new Soldiers that could make their project go smoother and more efficient. When it is time for him to ETS in four months, he could leave with a better piece of mind knowing that he did not have any drug charges or any other black marks in his punishment records. f. He only wished that he records could be examined more closely to find that he was definitely not a drug abuser but he was a troubled Soldier from July to December 1983, and for this reason he asked the he not be chaptered out and to give him a chance to prove that he could function and behave in a military manner. (Second page of the statement is unavailable for review) 11. On 21 March 1984, the appropriate authority approved the separation and directed he be discharged under the provisions of AR 635-200, chapter 13 (separation for unsatisfactory performance), with a General Discharge Certificate. 12. On 19 April 1984, the applicant was discharged accordingly, his service was characterized as an under honorable conditions (general) discharge. He completed 3 years, 9 months, and 4 days of net active service. His DD Form 214, (Certificate of Release or Discharge from Active Duty), shows he was awarded or authorized: * M-16 Rifle Marksman Marksmanship Qualification Badge * Grenade Expert Marksmanship Qualification Badge * Army Good Conduct Medal * Army Service Ribbon 13. The applicant states he did not realize that his discharge would be characterized as under general under honorable conditions. His record shows the applicant enlisted at the age of 18 years old, accepted two NJPs in which one was vacated, and was advised of the types of discharges he may receive if separated. 14. AR 635-200, Chapter 13 was a separation for unsatisfactory performance. Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. 15. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 13 established policy and prescribed procedures for separating members for unsatisfactory performance. It stated commanders would separate a Soldier for unsatisfactory performance when it was clearly established that in the commander's judgment, the Soldier would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier; or the seriousness of the circumstances was such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale; and it was likely that the Soldier would be a disruptive influence in present or future duty assignments; and it was likely that the circumstances forming the basis for initiation of separation proceedings will continue or recur; and the ability of the Soldier to perform duties effectively in the future, including potential for advancement or leadership, was unlikely; and the member meets retention medical standards. Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record. b. Chapter 9 established policy and prescribed procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to the Army Drug and Alcohol Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. However, an honorable discharge is required if restricted-use information was used. c. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013825 2 1